HUMANS OF BOMBAY STORIES PVT. LTD. vs POI SOCIAL MEDIA PVT. LTD. & ANR.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11th October, 2023
+ CS(COMM) 646/2023 & I.A. 18038/2023 & I.A. 20079/2023
HUMANS OF BOMBAY STORIES PVT. LTD. ….. Plaintiff
Through: Mr. Abhishek Malhotra, Ms. Srishti Gupta, Mr. Kartikay Dutta, Ms. Ishita Goel, Advs. Mob. No. 8979516789
versus
POI SOCIAL MEDIA PVT. LTD. & ANR. ….. Defendants
Through: Mr. Deepesh Joshi, Ms. Bhavna Vijay, Mr. Prashant Sthapak, Mr. Syed Ashhar Anwar, Advocates. Mob. No. 9111105786, 7067638987.
CORAM:
JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.
2. Two storytelling platforms i.e. Humans of Bombay (hereinafter, ‘HoB’) and People of India (hereinafter, ‘PoI’) are in dispute with each other in the present suit. 11. The Plaintiff runs a website called www.humansofbombay.in , and the Defendants run a website by the name www.peopleofindia.io.
3. The Plaintiff – Humans of Bombay Stories Pvt. Ltd. has filed the present suit seeking an injunction restraining the infringement of copyright of content consisting of the following:
(a) photographs,
(b) literary works forming the basis of the stories,
(c) videos,
(d) creative expression, which includes the manner of presenting the said stories.
4. The Plaintiff’s case is that it owns and operates a storytelling platform called ‘Humans of Bombay’ since 2014 wherein stories from various individuals are uploaded/presented as interviews, write ups, posts, etc. The Plaintiff claims that it engages in substantial research, and approaches various individuals (hereinafter, ‘subjects’) who are interested in narrating and sharing their life stories. These stories are then converted by the Plaintiff into audio-visual works and uploaded on their respective website and various social media platforms (hereinafter, ‘platforms’).
5. It is averred that the Plaintiff has a unique method of selecting subjects. After selecting and verifying the subjects, the Plaintiff’s team or contracted writers and authors craft the literary works that make up the stories, which include synopses, captions, and scripts. The plaint avers that the copyrights for all these literary works, produced as works for hire, are owned by the Plaintiff. It is further stated that before publishing, written consent is obtained from the subjects, ensuring an agreement between the subject and the Plaintiff for a specified period, preventing others from telling the subject’s story.
6. The plaint avers that HoB, due to their format, it has become one of the nation’s largest storytelling website/platforms. HoB is stated to have successfully partnered with major brands for story sponsorships and calls to action. Additionally, the Plaintiff is stated to be the official storytelling associate for the Rajasthan Royals during the 2023 Indian Premier League season. The Plaintiff has also harnessed the platform’s extensive reach to fundraise for significant causes also. As on date, the Plaintiff boasts of having 26 lakhs followers on their Instagram page, and nearly 10 lakh followers as well as over 750 Million views on their YouTube page.
7. Some examples of the Plaintiff’s content have been provided at paragraph 14 of the plaint.
8. The cause of action for instituting the present suit arose in 2022, when the Plaintiff noticed that the Defendant No.1-PoI Social Media Pvt. Ltd. allegedly used the Plaintiff’s literary works and creative expression. It is further averred that the content shared by Defendant No. 2-Ms. Drishti Saxena on these handles was, in many cases, either identical to the Plaintiff’s content.
9. A Cease-and-Desist Notice was sent by the Plaintiff on 17th February 2022 to Defendant No. 2, asking it to refrain from posting infringing content. Further, another legal notice dated 19th July 2023 was sent, urging the Defendants to refrain from publishing the said content. Thereafter, the Defendants have stated to have responded to the said legal notice vide communication dated 31st July 2023.
10. The Plaintiff’s case is that the Defendants have imitated and copied a large portion of the contents from its website. Several of the images were stated to have been replicated. Some of the images alleged to have been replicated from the Plaintiff’s website are set out below:

Plaintiff’s content
Defendants’ content

11. The Plaintiff is also aggrieved by the Defendants’ wrongful/tortious interference in their contracts with the said subjects.
12. Consequently, a prayer was sought for injunction against the Defendants’ website and activities. On 18th September, 2023, the matter was considered by this Court. The Court had perused the various allegations in the plaint, specifically those concerning identical images, featured on both the websites/platforms. After extracting the said images in the order, the Court had issued notice in the application I.A. 18038/2023 and come to the prima facie conclusion that there was substantial imitation in respect of the photographs/images. The relevant portion of the said order reads as follows:
“18. Heard. A perusal of the images above would show that, prima facie, there is substantial imitation and in fact, in some cases, the photographs/images are identical or imitative.
19. In this view of the matter, issue notice to the Defendants. In addition, intimation be issued by the Plaintiff’s counsel through e-mail.
20. In addition, ld. Counsel for the Plaintiff on the query relating to how this Court would have jurisdiction, submits that a number of subjects who were being interviewed by the Defendants are based out of Delhi. Let an affidavit to this effect be placed on record within one week.”

13. Summons were issued to the Defendants, and they were permitted to put up their case on the next date of hearing.
14. Today, Mr. Deepesh Joshi ld. Counsel has entered appearance on behalf of the Defendants, and submits that the presence of common images between the two websites and platforms may be due to the fact that the subjects of the said stories themselves may have provided these images to the Defendants. Additionally, he submits that the Plaintiff too has engaged in copying, as the Plaintiff has replicated certain images from the Defendants’ website. Some examples as contained in the reply filed by the Defendants are set out below:

15. He further submits that contrary to the Plaintiff’s claims, some of the photographs, of which the imitation is alleged by the Plaintiff, are not original photographs of the Plaintiff. These photographs had already been published on a third-party platform prior to the Plaintiff publishing the same. Therefore, in respect of the images that originated from third-party platforms, there cannot be a case of copyright infringement.
16. Further, according to the Defendants, in respect of certain photographs, since the subject of the story directly forwarded the images to the Defendants, no copyright can be claimed by the Plaintiff.
17. Ld. Counsel for the Defendants also points out that the Plaintiff’s platform is not unique; there are several platforms existing, which are similar story-telling platforms such as –
* Humans of New Amsterdam,
* Humans of Keralam,
* Humans of Goa,
* Humans of Bangalore,
* Humans of Delhi,
* Humans of Cinema,
* Humans of Hyderabad,
* Humans of Corporate,
* Humans of Equality,
* Humans of Ahmedabad,
* Humans of Queer,
* Humans of Bihar,
* Humans of Jhansi, and
* Humans of IT Companies.
18. He further submits that all these platforms, including the Plaintiff’s, imitated the original platform i.e., Humans of New York, which started in November, 2010. In its reply to the present application dated 4th October 2023, it is stated that Mr. Brandon Stanton initially introduced the idea of a storytelling platform, and subsequently created the “Humans of New York” page, which ultimately led to the conception of the Plaintiff’s platform. Following this, other companies and individuals, including the Plaintiff, established similar platforms as enumerated above. He, thus, submits that the Plaintiff cannot raise any grievance in respect of operating the storytelling platform ‘PoI’.
19. On behalf of the Plaintiff, Mr. Malhotra, ld. Counsel submits that the Plaintiff does not claim any right in running a storytelling platform. However, the Plaintiff claims rights under Section 14 and 17 of the Copyright Act, 1957 in respect of the following aspects:
(a) photographs commissioned by the Plaintiff,
(b) literary works created of the interview/content appearing on the website of the Plaintiff,
(c) the manner in which the story of a particular subject is presented by the Plaintiff, which would qualify as a compilation,
(d) videos, which are cinematographic works.
20. He submits that as long as the Defendants do not imitate any content from the Plaintiff’s platform, the Plaintiff should not have any objection to the Defendants operating the platform www.peopleofindia.io. It is further submitted by ld. Counsel for the Defendant that the above four aspects, in which the Plaintiff claims copyright, would apply identically to the Defendants’ platform and their content. Thus, the Plaintiff also ought to be cautious to not to imitate any of the above four elements of the Defendants.
21. The Court has considered the matter and heard ld. Counsel for the parties.
22. The Plaintiff has placed on record an affidavit dated 26th September 2023, placing details of the subjects, whose content/stories have been published on the Defendants’ platforms. It is stated that the said subjects were based in Delhi at the time when the cause of action in the present suit arose, and hence this Court has jurisdiction over this matter.
23. It is settled law that the object of the Copyright Act, 1957 is to protect the author of the copyright work from an unlawful reproduction or exploitation of his work by others. As observed by the Supreme Court, one of the key requirements of copyright law is that of originality, which contributes, and has a direct nexus, in maintaining the interests of the author as well as that of public in protecting the matters in public domain. In Eastern Book Company v. D.B Modak [2007] 13 (Addl.) SCR 182, the Supreme Court discussed the aspect of originality in copyright law, and observed as follows:
“38. […]
The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the Indian Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments. To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of merely labour and capital. The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author.
…
40. To support copyright, there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited ways/unique of expression available and an author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. In our view, the aforesaid inputs put by the appellants in the copy-edited judgments do not touch the standard of creativity required for the copyright”.

24. In R.G. Anand v. M/s. Delux Films [(1978) 4 SCC 118], the Supreme Court observed that there can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work. The relevant extract of the said decision is as follows:
“45. Thus, the position appears to be that an idea, principle, theme, or subject matter or historical or legendary facts being common property cannot be the subject matter of copyright of a particular person. It is always open to any person to choose an idea as a subject matter and develop it in his own manner and give expression to the idea by treating it differently from others. Where two writers write on the same subject similarities are bound to occur because the central idea of both are the same but the similarities or coincidences by themselves cannot lead to an irresistible inference of plagiarism or piracy. Take for instance the great poet and dramatist Shakespeare most of whose plays are based on Greek Roman and British mythology or legendary stories like Merchant of Venice, Hamlet, Romeo Juliet, Jullius Caesar etc. But the treatment of the subject by Shakespeare in each of his dramas is so fresh, so different, so full of poetic exuberance, elegance and erudition and so novel in character as a result of which the end product becomes an original in itself. In fact, the power and passion of his expression, the uniqueness, eloquence and excellence of his style and pathos and bathos of the dramas become peculiar to Shakespeare and leaves precious little of the original theme adopted by him. It will thus be preposterous to level a charge of plagiarism against the great play-wright. In fact, throughout his original thinking, ability and incessant labour Shakespeare has converted an old idea into a new one, so that each of the dramas constitutes a master-piece of English literature. It has been rightly said that “every drama of Shakespeare is an extended metaphor”. Thus, the fundamental fact which has to be determined where a charge of violation of the copyright is made by the plaintiff against the defendant is to determine whether or not the defendant not only adopted the idea of the copyrighted work but has also adopted the manner, arrangement, situation to situation, scene to scene with minor changes or super additions or embellishment here and there. Indeed, if on a perusal of the copyrighted work the defendant’s work appears to be a transparent rephrasing or a copy of a substantial and material part of the original, the charge of plagiarism must stand proved. Care however must be taken to see whether the defendant has merely disguised piracy or has actually reproduced the original in a different form, different tone, different tenor so as to infuse a new life into the idea of the copyrighted work adapted by him. In the latter case there is no violation of the copyright.
46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:
1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work is nothing but a literal limitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an
unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
7. Where however the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.”

25. Under Section 2(c)(i) of the Copyright Act, 1957, artistic works include photographs as well. Further, in relation to a photograph, the person taking the photograph is considered as an author under Section 2(d)(iv) of the Copyright Act, 1957. Further, in terms of Section 17 of the Copyright Act, 1957 if a photograph, or cinematograph film etc. is created upon payment and at the request of a person, that person will be the initial copyright owner unless there is an agreement to the contrary.
26. The present case raises the classic issue concerning the idea-expression dichotomy. The settled legal position as per the law enunciated above is that no copyright can be claimed in an idea. However, the expression of any idea cannot be imitated or copied, and if expression is copied, the same would constitute infringement of the copyright under Section 51 of the Copyright Act, 1957.
27. In the context of the present suit, the idea at the core is of a storytelling platform. There can be no monopoly over the running of such a platform. However, all such platforms that share stories about various individuals/subjects would be attaching/incorporating their own creative ways to communicate and disseminate the said stories, which constitute the expression. Such expression is protectable under Copyright law.
28. In a story telling platform, the following aspects could constitute the creative aspects:
(a) Images, literary content, and the manner in which particular stories are depicted would be exclusive to the platforms themselves.
(b) If any photographs and videos are commissioned by such platforms, then the copyright in the said photographs and videos would vest in the respective platforms, as such content would qualify for protection under the Copyright Act, 1957.
(c) Literary content i.e., the manner in which a particular story of a subject is written/articulated, is the literary work of a particular author who might have written it.
(d) Further, subjects could be submitting photographs which form part of their own collection, to different platforms. If, such photographs are reproduced by various platforms, then such platforms cannot claim any rights in such content. However, if the photograph is one which is commissioned by the platform itself, then the platform would hold copyright in the said content.
29. The allegations in the suit and in the reply would show that there are several story-telling platforms that are currently being run. There can be no restraint on such a platform being run. But the second allegation now is that both the Plaintiff and the Defendant are replicating each other’s photographs/images while communicating stories related to the same individuals. There may be various justifications that may be put forward by the parties on this aspect. The said justifications include common source, common subject, common settings where the image is clicked etc., Without going into these justifications on an image-by-image basis, the Court feels that some clarity ought to be there in view of the legal position discussed above.
30. After hearing submissions, it is clear to the court that neither of the platforms would be entitled to replicate or imitate each other’s content and images. The platforms also cannot copy or replicate each other’s literary content. Accordingly, the order that deserves to be passed in the present case, to which both sides have consented, is that both the platforms i.e., Humans of Bombay and People of India shall refrain from using each other’s copyrighted works i.e.,
(1) commissioned photographs;
(2) literary works such as interviews scripts and original pieces written authors on the respective platforms;
(3) videos that may have been commissioned by the platforms themselves;
(4) the manner of presentation of the stories published by the platforms in respect of a particular subject.
31. It is clarified that insofar as the images, photographs or videos submitted by the individuals or subjects from own private collections are concerned, there cannot be any copyright claimed by either of the platforms.
32. The present suit, accordingly, is decreed in the above terms. Both parties shall be bound by the terms and conditions recorded above.
33. In view of the above, Mr. Jain, ld. Counsel for the Defendants does not press his application under Order VII Rule 10 CPC.
34. Neither of the parties insists on any costs/damages from each other. Decree sheet be drawn up accordingly.
35. The present suit, along with the along pending applications is disposed of in the above terms.

PRATHIBA M. SINGH
JUDGE
OCTOBER 11, 2023/dk/dn

CS(COMM) 646/2023 Page 1 of 24